Lithium Power International Ltd (fka LTHHF)

[Dr_Vonschellan]

Climber18,_The Supreme_Court (TC)_decision I_assume you are_asking
about is the case number 13228-2022 legal wrangling between Codelco and SIMCO over the question of non-handholdable lithium brine being excluded through a flimsy legalese/semantics loophole from being "possessed" by privateer miner SIMCO in their pre-1979 land purchase agreement and subsequent/associated fully-notarized fully-legal CChEN approvals. This is the classic what comes first... the chicken (non-handholdable liquid lithium) or the egg (handholdable lithium granules) argument which beaners with only a half a brain (like Anti-Mining Minister Communista Marcela Hernando) have been promulgating in favor of non-handholdable "liquid lithium belonging to all of god's communist children flowing through from top of mountain to Pacific Ocean spillways thus the lithium never truly possess-able by a single private individual (eg SIMCO) along the path" argument and now strong arm (by brutish Gabby Boric) forcing moneybags Codelco to pay the huge multi-million dollar legal fees to argue this commie existential bullsheet in Chilean courts in hopes to nullify all previous purchase agreements where privateers bought lithium-rich property prior Augusto Pinochet's law making lithium a handholdable granule Strategic Mineral and state owned unconditionally wherever the lithium granules reside/sit. And do please note that Augusto Pinochet originally enacted this Strategic Mineral law so only he and his family (including fellow fascists) could steal the lithium from Chile. Remember his son-in-law Julio Ponce was once the head of CORFO before founding SQM.

SIMCO will argue in court the microscopic handholdable lithium granules were on his Maricunga property decades before 1979 and are still on his property being slowly occasionally causally "increased" in microscopic handholdable granule volume for further legal/fair accumulation by underground rivulets from the mountains still delivering more lithium into the beautifully naturally-occurring closed reservoir that sits below his property which made the land so valuable when he originally bought it and also makes the land super valuable (eg billions and billions and billions of US dollars) now in 2023 if the government foolishly tries to take it from him by military expropriation.

We (NewCo) are not named in this lawsuit but the outcome could affect us in that if Codelco were to be given carte blanche permission to suck SIMCO's brine out by drilling on a sharp angle from their inferior property into SIMCO's property (ie SIMCO's aquifer edge) they could pump much much richer brine out for processing greatly lowering their energy input costs in the refinement stage and producing a higher grade of LCE in a shorter time than they possibly ever could "working" their own crippled crapita subpar property.

On a positive note the lawsuit will ultimately now indirectly serve as the proper preparatory work to "set the entire Chilean State" up for a huge huge hugefocking financially if the State ever tries to steal SIMCO's brine. I believe the "pass the buck" chickensheet Supreme Court (TC) judges are not going to rule in anyone's clear distinct favor but instead they will write in their decision that Codelco must "be a good boy now and negotiate in good faith" with SIMCO which could possibly lock up any lithium development work near the SIMCO/Codelco borders in Maricunga for another 3 years until a centrist, right-wing or fascist-lite president can be elected in 2026. In the meantime Codelco will not be allowed to step even one foot on SIMCO, SQM or NewCo Maricunga property I would certainly bet.

You will next find the following January 15, 2023 "opinion" below written by Marcel Mardones interesting I would think.

The Doctor

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Ref: http://webcache.googleusercontent.com/search?q=cache:EhGd36mCXdEJ:https://www.elmercurio.com/Legal/Noticias/Opinion/2023/01/13/911885/ceol-y-concesiones-mineras-superpuestas.aspx&hl=en&gl=us&strip=0&vwsrc=0

See Court doc 13228 - 2022

Marcel Mardones writes:
Compatibility between CEOLs and overlapping mining concessions

...The use of the public mining domain, as published goods, must be carried out in the last instance in an orderly manner and in accordance with the common or general good (and not only of the special contractor/State), since, precisely, It is a public good whose use must obtain the maximum social well-being..." Friday, January 13, 2023 at 10:00 a.m.

The use of the public mining domain, as published goods, must be carried out in an efficient and orderly manner and in accordance with the common or general good, since, precisely, it is a public good whose use must obtain the maximum social well-being. . As will be explained, when there is more than one holder of mining rights over the same area, solutions must be sought to ensure their compatibility, especially when the rights derived from such titles have a different nature and scope.

In September 2022, Codelco and Salar de Maricunga Spa (SM SpA) requested the Ministry of Mining to complement the wording of the Maricunga Special Lithium Operation Contract (CEOL Maricunga) to specify that said contract enables SM SpA to explore, exploit and benefit substances of lithium throughout the Salar de Maricunga, eliminating from the CEOL the exclusion of the areas included by mining properties constituted before 1979 or in accordance with the Mining Code of 1932 (“Pre-existing Mining Properties”), thus allowing said company to take advantage of the lithium located in any geographical area of the "Maricunga Salt Flats Area", as defined in the CEOL. To this end, SM SpA maintains that not all pre-existing mining properties grant their holder the right to use the lithium contained in them, so there would be no previous title that justifies the aforementioned exclusion.

In a previous publication in this medium, it has been argued that the aforementioned claim by SM SpA (note edit for clarification: SM SpA is a subsidiary of Codelco) "gives rise to a conflict between two incompatible rights to exploit the same lithium (...) a problem that, conceptually, follows the logic of private law and not that of expropriations (...) under two classical principles (...): the nemo dat rule (edit means: no one can give what they do not have) and the relative Title Doctrine”.

In these lines we intend to propose some additional ideas, which rest on basic principles of public law, as a legal regime to which CEOLs are primarily subject.

Nature of CEOLs
The Special Operation Contracts (CEO) constitute a legal title that authorizes third parties, private or public, to take advantage of any of the substances that are not judicially granted. It is a generic business title that arose as a way of circumventing the constitutional prohibition existing at the time (after the enactment of Law 17,450/1971) to grant concessions on hydrocarbons and that currently may also have as its object the use of substances contained in deposits in maritime waters subject to national jurisdiction, in deposits in areas of importance to national security, as well as lithium.

The General Comptroller's Office (CGR) has indicated in its opinions 26,650/1983, 73,497/2012, and 29,460/2014 that CEOs "are particular acts through which the Administration allows a third party to carry out certain activities, the President of the Republic, in use of its constitutional power, to establish in each case the requirements and conditions that such agreements must contemplate, thus regulating the essential elements for the specific situation.

Through such contracts, the State must comply with its obligation to take advantage of the substances placed under its ownership by virtue of its publication, in order to achieve its "orderly and socially beneficial use and enjoyment", and to achieve the "maximum distribution" of the well (STC Rol 1.281/08, c. 34).

Thus, CEOLs are true administrative contracts for the provision of services to the State, with or without risks for the contractor, which, as such, do not grant real administrative rights (as mining concessions do)1, but only personal rights. . This implies that the contractor's right is not opposable erga omnes, but only against its direct counterpart, that is, the State.

(Editorial clarification added here: To say that a right has erga omnes character or is 'opposable towards all' is simply a description of the scope of application of the right. For example, the right of a coastal state to enact certain legislation in relation to its Exclusive Economic Zone is opposable towards all other states.)

A clear manifestation of the foregoing is that, in the case of the oil (sic, translate to brine) CEOLs (CEOP), they sign explicitly the clause "salvo iure tertii" (ie without prejudice to third parties), which has been invoked by the CGR precisely to justify the impossibility for a CEOP affects the rights of a pre-existing mining concessionaire, thus validating the compatibility of both titles (opinion 31.047/1990).

The exclusion of pre-existing mining properties
Underlying the generic exclusion of pre-existing mining properties is, precisely, the idea of "salvo iure tertii", since it seeks to safeguard those pre-existing legal situations protected under a prior concessional ownership, and the Administration must adopt the necessary measures to not affect previously constituted rights (administrative neutrality).

With this in mind, the obvious conclusion is that the exclusion not only covers pre-existing mining properties that can extract lithium —as SM SpA maintains in its request—, but also all those others that, even without said right, allow the extraction of other substances closely related to lithium and whose use may be reduced by the expansion of CEOL Maricunga.

Towards a compatible use
However, an intermediate reading is possible that distinguishes between the concessions with the right to extract lithium and those that lack it, with a view to obtaining a better use of the published substances. It should be remembered that, from a general perspective, in our law on natural resources and energy there is a general principle of trying to regulate situations of coexistence of titles that allow the use of various substances, or the performance of activities of a different nature, aiming towards the compatibility of activities.

The foregoing is particularly true in the case of normally non-renewable resource reservoirs that behave as "liquids", that is, in which their substances move due to their physical characteristics, for which reason they are called "migratory things" or “migratory properties”2. Such is the case of oil fields and geothermal reservoirs, which are in various ways closely related to liquids. For this reason, the praxis first and the regulation later have devised mechanisms to avoid competition between the holders of exploitation rights in the same reservoir, and, on the contrary, to ensure an efficient use of the resources. Ideas, by the way, replicable to the salt flats.

Thus, it would be necessary to distinguish between the case of pre-existing mining properties with the right to extract lithium and those that lack such right.

Although in the first case there would be a total impossibility for the area of the CEOL Maricunga to overlap the area of the concession, given the personal nature of the rights of the CEOL and the opposability of the concession rights, in the second case we believe that the principle “salve iure tertii” should be read in such a way that orderly and socially beneficial use and enjoyment of all mineral substances in the area can be achieved, which may imply “coordinated” use. The foregoing, since it deals with the collision of economic activities covered by a constitutional guarantee (art. 19 No. 21 CPR), whose conflicts must try to be resolved, as a priority, through such compatibility file.

As we anticipated, the use of the public mining domain, as published assets, must ultimately be carried out in an orderly manner and in accordance with the common or general good (and not only of the special contractor/State), since, precisely, it is It is a public good whose use must obtain the maximum social well-being. Such premises are translated into the idea of an efficient and coordinated use of such substances, which, in turn, means that the rights of third parties are not affected. This reading imposes on the State the duty to require the special contractor to agree on coordination mechanisms, joint exploitation or similar, of the salt flat, in order to ensure the adequate, efficient and rational use of all the substances existing in it.